THE WALL STREET JOURNAL:
The Federal Bureau of Investigation’s Domestic Investigations and Operations Guide, the bible for agents, has long recognized that journalists, the clergy and lawyers deserve special protections because of the constitutional implications of investigating their work. Penitents who confess to a priest, sources who provide confidential information to a reporter, and clients who seek advice from counsel are assumed to be protected by a high bar of privacy, which must be weighed against the state’s interests in investigating matters or subpoenaing records. Judges and members of Congress also fall into a special FBI category because of the Constitution’s separation of powers.
The FBI and Justice Department have therefore created specific rules governing agents’ actions involving special-circumstances professionals, which include high-level approval and review. There are also special rules for subpoenaing journalists.
If the executive branch, and by extension the courts that enforce these privacy protections, observe the need for such sensitivity, it seems reasonable that Congress should have similar guardrails ensuring that the powers of the state are equally and fairly applied.